COURT OF APPEAL FOR ONTARIO

CITATION: Fonseca v. Hansen, 2016 ONCA 299

DATE: 20160426

DOCKET: C58894

Gillese, MacFarland and van Rensburg JJ.A.

BETWEEN

Debbie Fonseca

Plaintiff (Appellant/

Respondent by way of cross-appeal)

and

Paul Hansen, Transx Ltd. and HSBC Bank Canada

Defendants (Respondents/

Appellants by way of cross-appeal

Scott C. Hutchison and Matthew R. Gourlay, for the appellant/respondent by way of cross-appeal

Ian D. Kirby, for the respondents/appellants by way of cross-appeal

Heard: January 22, 2016

On appeal and cross-appeal from the judgment of Justice Kendra D. Coats of the Superior Court of Justice, sitting with a jury, dated May 22, 2015.

MacFarland J.A.:

OVERVIEW AND ISSUES

[1] The appellant was involved in a motor vehicle collision on March 20, 2008 in Mississauga, Ontario. She was stopped at a red light at an intersection when her vehicle was hit from behind by a transport truck. At the time, the appellant was enrolled in a dentistry general practice residency in Vancouver, B.C. She was home for the Easter long weekend, visiting her family, when she was involved in the collision. She suffered injuries as the result of the accident which she claimed prevented her from maintaining a full time clinical dentistry practice.

[2] The respondents admitted liability shortly before the commencement of the trial and accordingly the contest was confined to the assessment of damages.

[3] In summary, the respondents took the position that the appellant had recovered from her injuries sufficiently by August 2011 to resume a full time clinical practice. The appellant’s position was that she was only able to work 15 to 20 hours per week in a clinical setting and that her condition was likely to be permanent. Her economic expert, Dr. House, opined that her future income loss would be between approximately $6,000,000 and $18,000,000 depending on the career path she would have followed in the absence of the accident.

[4] At the conclusion of the trial, the jury awarded damages to the appellant as follows:

1. General Damages $104,000

2. Past Income Loss $584,187[^1]

3. Future Income Loss $112,496

4. Other Special Damages $ 44,412

5. Future Health Care Costs $ 27,450

[5] There are two issues in this appeal. They are framed in the appellant’s factum as follows:

1. Is the jury’s award of $112,496 for future income loss fundamentally inconsistent with the other damages awarded or so low as to amount to an injustice?

2. Did the trial judge err by failing to instruct the jury that pre-trial communication between [the appellant’s] counsel and an expert witness was not a proper basis upon which to reject the expert’s testimony?

[6] The appellant asks this court to set aside the jury’s verdict and the judgment in relation to her future income loss. She asks that this court substitute its own assessment of her future income loss and submits that a fair and reasonable amount is $6,000,000 – the lower bound of future income loss that Dr. House put forward at trial. In the alternative, she asks that this court order a new trial limited to the question of future income loss.

[7] The respondents by way of cross-appeal seek leave to appeal the trial judge’s costs order[^2] and raise three issues:

1. Whether the trial judge erred by failing to award the appellant her costs only to the date of the respondents’ offer to settle and the respondents their costs after that date in accordance with rule 49.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194;

2. Whether the trial judge erred in determining that the respondents’ entitlement to an assignment of collateral and statutory accident benefits should be limited in the manner specified in her judgment;

3. Whether the trial judge erred in awarding interest on the awards for past income loss and special damages at a blended rate rather than at the rate prescribed by ss. 127 and 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

THE APPEAL

Issue #1 – The Jury’s Damages Award

Standard of Review

[8] The law in relation to when it will be appropriate for an appellate court to overturn the verdict of a jury is well-settled.

[9] In McCannell v. McLean, 1937 CanLII 1 (SCC), [1937] S.C.R. 341, at p. 343, Duff C.J. said:

The principle has been laid down in many judgments of this Court to this effect, 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.

[10] The court quoted from the judgment of Lord Wright, with which two other members of the majority concurred, in Mechanical and General Inventors Co. Ltd. v. Austin, [1935] A.C. 346, at p. 375 (H.L.):

Thus the question in truth is not whether the verdict appears to the appellate Court to be right, but whether it is such as to show that the jury have failed to perform their duty. An appellate Court must always be on guard against the tendency to set aside a verdict because the Court feels it would have come to a different conclusion.

[11] The law has not changed despite the passing of many decades. In Koukounakis v. Stainrod (1995), 1995 CanLII 621 (ON CA), 23 O.R. (3d) 299, at p. 305 (C.A.), Doherty J.A. put the test this way:

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”. Appellate courts do not decide whether a jury made the “correct” award for general non-pecuniary damages, but only whether the award is “beyond the scope of anything that could be accepted as reasonable”. [Citations omitted.]

[12] In Koukounakis the issue was whether an award for general damages made by the jury in that case was too high. The same principle, of course, is applicable here where the award is said to be “so low as to amount to an injustice”.

[13] This statement of the law has been followed consistently in decisions of this court; the standard for appellate review of a jury verdict in a civil case is “very high” and the onus is on the appellant: see Lazare v. Harvey, at 2008 ONCA 171, at para. 24, leave to appeal refused, [2008] S.C.C.A. No. 320.

The Appellant’s Position

[14] In the present case, there is no suggestion that the trial judge erred in her charge to the jury on this issue. The appellant’s position is succinctly stated in her factum as follows:

Can the future income loss award of only $122,496 be rationally reconciled, on any basis whatsoever, with the jury’s apparent acceptance of all the plaintiff’s economic evidence, and its apparent acceptance that she would have continuing future losses (and thus the future health care costs)?

[15] As posed the question is a loaded one. Any answer depends on two assumptions built into the question – the jury’s “apparent acceptance of all the plaintiff’s economic evidence” and its “apparent acceptance that she would have continuing future losses”.

[16] In support of the first assumption, the appellant suggests that the following can be inferred from the jury’s verdict. First, the amount awarded for past income loss indicates that the jury found the appellant would have worked as a general practice dentist but for her injury. Second, this award also indicates that the jury accepted the economic evidence of Dr. House and rejected the respondents’ theory that she had fully recovered by August 2011.

[17] With respect to the second assumption, the appellant, in her factum, says that the future health care costs award was “ample” and “provides no insight into the factual findings that may have underpinned the incongruous future income [loss] award.” The appellant further submits that the notion that she would somehow fully recover only a few months after trial finds no basis in the evidence adduced by either party at trial.

Analysis

[18] The difficulty for the appellant here is that in relation to both assumptions there was conflicting evidence. As Lang J.A. explained in Lazare v. Harvey, at para. 29, “[i]n those cases where there is some evidence to support the jury's verdict, high deference will be accorded and the verdict will not be set aside even if another conclusion is available on the evidence.”

[19] Whether the appellant was or would ever be sufficiently recovered from her injuries to carry on a full time clinical practice was the hotly contested issue at trial. Of the seventeen witnesses called at trial (other than the appellant herself), eight were expert medical witnesses who offered opinion evidence about the nature of the appellant’s injuries and their respective prognosis for her likely recovery or lack thereof. There was no disagreement among the experts that the appellant’s injuries were soft tissue in nature. Nor was there serious disagreement that her symptoms had improved over time.

[20] By the time of trial in April and May, 2014 the significant continuing disabling symptoms described by the appellant were the pain in her neck, mid-back area between the scapula, jaw pain and headaches, all of which were exacerbated by the physical demands of her work.

[21] Dr. Anton and Dr. Panagiotopoulos, a physiatrist and an orthopedic surgeon respectively, were of the view that improvement in the appellant’s symptoms had likely plateaued. Their prognosis for any further improvement in the future was guarded.

[22] The evidence was clear that from the time of the accident to trial there had been significant improvements in the appellant’s condition, but certainly Drs. Anton and Panagiotopoulos were not optimistic about further improvement. Dr. Panagiotopoulos noted that “[a]t best she will hopefully be able to control her symptoms with ongoing treatments and medications in future.” Dr. Anton had “no doubt that the postural demands of [the appellant’s] work exacerbated her pain when she finally returned to work.” In his opinion, the repetitive, sustained postures that the appellant was required to assume by the very nature of her work as a dentist continued to exacerbate her pain.

[23] Dr. Lancer Rucker is a dentist with highly specialized expertise in ergonomics as it relates to the practice of dentistry. Dr. Anton in his evidence stated that ergonomics, in his view, was the only real intervention that might improve the appellant’s tolerance for clinical dentistry work. He could think of nothing that might help her other than what Dr. Rucker might suggest.

[24] The appellant saw Dr. Rucker on several occasions. He conducted an “ergonomic practice assessment” to determine the contribution of problematic clinical ergonomics to the appellant’s impairments and the potential role of ergonomic training in helping her return to work.

[25] Dr. Rucker did not testify at trial but his report dated April 28, 2009 was filed in evidence. He outlined the difficulties that the appellant reported to him. He observed the appellant perform a variety of procedures and noted that her levels of ergonomic self-awareness and sophistication were “quite limited”, which is about average compared to most recent dental graduates. In his clinical observations, he explained that:

These errors are common among dentists and dental hygienists, but are associated with increased risks of musculoskeletal pain, even in individuals who have not experienced the trauma of [a motor vehicle accident]. Given the circumstances and symptom patterns reported by Dr. Fonseca, her level of ergonomic sophistication becomes critical so that such profile elements must be completely eliminated if she is to comfortably return to full clinical practice.

[26] And in the comment section of the report he noted:

Dr. Hirsch’s report suggests that he has ruled out ongoing contributions from most underlying systemic and structural problems (with the exception of the TMJ damage), and he expressed some confidence that Dr. Fonseca’s physical resilience will gradually be fully recovered. If that is an accurate assessment, then I am all the more concerned that her current ongoing symptom pattern indicates a critical need for her to learn how to work without ergonomic compromise so that the healing process will not be impeded or reversed.

[27] Dr. Rucker recommended sessions in the appellant’s workplace both to optimize the clinical equipment layout as well as to teach the appellant “new ways to operate clinically which reduce or eliminate her current postural and positional compromises.”

[28] He concluded:

Although I am optimistic that Dr. Fonseca should be able to achieve comfortable full-time practice, it can only be after her ergonomic IQ has been maximized in an optimized clinical setting will we be able to determine how much residual compromise, if any, may have resulted from the tissue damage of the MVA injuries.

[29] The appellant’s evidence was that she followed up with Dr. Rucker and had several sessions with him. She then contacted him by email to postpone subsequently scheduled sessions and thereafter spoke with him by telephone. She explained that other than providing her with some videos to watch and implement in her practice, Dr. Rucker said he had nothing more to offer her. The sessions were cancelled. As I have said, Dr. Rucker did not testify at trial; only his April 2009 report was filed.

[30] Dr. Parkinson, the biomechanical expert called by the appellant, reinforced Dr. Rucker’s evidence in relation to the postures routinely adopted by dentists in their work. He explained that, based on one research study discussed in his report, 65 per cent of dentists had neck and shoulder problems while 59 per cent had lower back problems – regardless of whether they were involved in an automobile accident.

[31] Dr. Chris Boulias, a physiatrist, was called by the respondents. He testified that soft tissue injuries do not get worse but that they get better over time. In his expert opinion, there was no contraindication preventing the appellant from pursuing her pre-accident career plans. He encouraged her to regularly and consistently perform core strengthening and stretching exercises. His prognosis for further improvement in her injuries was positive. Like Dr. Panagiotopoulos, he only saw the appellant on one occasion.

[32] Dr. Hamm, a specialist in occupational medicine, also saw the appellant on one occasion, in April 2009. He testified that her jaw condition and headaches had improved since the accident but, at that time, the appellant had not yet reached maximum medical improvement. He said, however, that the appellant had described substantial improvement since the accident which suggested that she would likely make further gains in her symptoms and functionality with continuing rehabilitation.

[33] With the possible exception of Dr. Blasberg, none of the expert medical witnesses were the appellant’s treating doctors. They were either retained by counsel for the appellant or the respondents to provide an opinion for the litigation, or were retained on behalf of a third party insurer.[^3] Although the appellant gave evidence about regular visits to a family doctor she had been seeing consistently from the time of the accident to the time of trial, that doctor neither testified nor was any report of her evidence filed.

[34] The jury was left with a series of “snapshots” as it were, in relation to the various medical professionals’ assessments of her symptoms and prognoses for further recovery. There was no evidence from one or more of the doctors who saw her continuously over time. The jury had to deal with what it had in terms of evidence and decide what it would accept and what it would not.

[35] On the whole of the evidence there was a divide in the medical opinions. Some of the medical professionals were of the view that the appellant’s condition was unlikely to improve in the future and it was unlikely that she would be able to resume a full time clinical practice. Others were of the view that soft tissue injuries improve over time and that there was nothing preventing the appellant from resuming a full time clinical practice provided that she maximized her “ergonomic IQ” and worked in an “optimized clinical setting”. It was open to this jury to accept the evidence of Drs. Rucker and Boulias on this point.

[36] It was equally open to them on this record to find that the appellant had suffered income losses in accordance with Dr. House’s calculations up to the time of trial, but that she should, within a short time, be able to earn the equivalent of a general practice dentist working full time in a clinical setting.

[37] Dr. House calculated the appellant’s past and future income loss based on three different assumptions. These were that, but for her injuries, she would have gone on to work as a general practice dentist, a specialist in pediatric dentistry, or an oral surgeon. In his testimony, he gave an opinion as to the appropriate past and future income loss awards depending on which assumption the jury accepted.

[38] It is clear, in my view, that this jury did not accept that the appellant would have specialized in either pediatric dentistry or oral surgery. And in this court the appellant takes no real issue with that finding, which is apparent on the awards they did make.

[39] The jury awarded $584,187 for past lost income. While not the precise figure that Dr. House calculated based on the assumption that the appellant would have worked as a full time general practice dentist, it is very close.

[40] The appellant’s earnings for the years from the time of the accident to the time of trial were before the jury. In the six years following the accident her annual income had increased from $49,887 in the year of the accident to a high of $234,457 in 2013. Her income was lower in 2014 because of the loss of her administrative position at the University of British Columbia and the fact that the trial was taking place in April and May 2014.

[41] In my view, it is not “inconsistent” for the jury to have awarded the full past income loss amount that the appellant claimed but only a relatively smaller sum for future income loss. The jury was clearly satisfied that while the appellant had suffered a compensable income loss to the date of trial, based on the evidence they accepted, she could either resume a full time clinical practice or earn an equivalent income in the very near future.

[42] The jury’s award for future income loss was significantly less than the plaintiff had claimed – so too was their award for future health care costs. While the appellant’s counsel did not suggest a figure for future health care costs to the jury, it was plain on the evidence that her ongoing expenses for kinesiology, massage therapy, and botox injections alone over the course of her working life would well exceed the $27,450 that the jury awarded.

[43] Similarly, the appellant in her Amended Statement of Claim sought $14,000,000 in damages. On Dr. House’s evidence the numbers for future income loss alone ranged from a low of about $6,000,000 to a high of about $18,000,000 depending on whether the appellant specialized or remained a general dentist. The jury clearly rejected any amount approaching the sum claimed for future income loss.

[44] The appellant’s argument is similar to the argument made in Koukounakis. On her cross-appeal in that case the plaintiff submitted that the jury, having found that she would incur future care expenses, had no choice on the evidence but to award the full amount claimed by her. Doherty J.A. dismissed the cross-appeal and observed, at p. 314:

I do not accept the contention that the evidence was reasonably capable of supporting only one view of [the plaintiff’s] future medical costs. As with any evaluation of future expenses, a number of variables were at play and different opinions were advanced by various witnesses depending on those variables. The jury was not obligated to accept any one view of that evidence. Their assessment is not unreasonable.

I also reject the submission that because the jury awarded the full amount claimed for past medical expenses, consistency demanded that the jury do the same with respect to a claim for future care costs. The two heads of damages are distinct and an award made under one head of damage does not necessarily bear any relationship to an award made under another.

[45] For these reasons, I am not persuaded that there is any inconsistency in the amount the jury in the present case awarded for future income loss when compared with the amounts it awarded on the other heads of damage. I would reject the appellant’s submission to the contrary. In my view, there was evidence that supported the jury’s verdict and it should not be set aside even though other conclusions were also available on the evidence.

Issue #2 – The Propriety of Communications between Counsel and Expert

[46] The trial judge in this case was in a difficult position. The trial decision in Moore v. Getahun, 2014 ONSC 237, had been released but the appeal to this court had not yet been argued.

[47] The relevant issue in Moore was the propriety of counsel reviewing the draft report of an expert witness who had been retained to provide an opinion. The trial judge in that case had strongly disapproved of the practice of counsel reviewing draft expert reports.

[48] This court ultimately dismissed the appeal in Moore v. Getahun, 2015 ONCA 443, leave to appeal to S.C.C. refused, 2015 CarswellOnt 14066, but not without correcting the trial judge’s stance on this issue. At para. 66 of this court’s reasons, Sharpe J.A. wrote, “I reject the trial judge’s proclamation that the practice of consultation between counsel and expert witnesses to review draft reports must end.” Sharpe J.A. was, however, of the view that the trial judge’s criticism of counsel on that basis did not affect the outcome of the trial.

[49] The issue in the present case relates to the propriety of discussions between counsel and an expert witness before the expert had prepared his report. At trial, the respondents repeatedly took the position that such conduct was highly improper. The clear innuendo being that if such communications had occurred, counsel had influenced the expert’s opinion.

[50] On appeal, the appellant submits that the trial judge erred by failing to instruct the jury that such communications were not a proper basis upon which to reject an expert’s testimony. They say that the trial judge’s failure to correct respondents’ counsel’s erroneous approach to the issue amounts to a legal error.

[51] I am sympathetic to the appellant’s position. Respondents’ counsel’s line of questioning was undoubtedly improper in light of this court’s decision in Moore. It should not have been permitted. It is also clear from the record, however, that counsel for both parties ultimately agreed to the contents of the trial judge’s charge on this issue. Therefore, for the reasons that follow, I would dismiss this ground of appeal.

The Trial Proceedings

[52] The appellant’s expert Dr. Anton was cross-examined in relation to any discussions he may have had with appellant’s counsel before he prepared his report. He was taken to the retainer letter he had received from the appellant’s lawyer, Mr. Gibson, and specifically the request that he contact the lawyer before writing his report. When asked about the request, Dr. Anton responded that such a request was not typical. The doctor was satisfied that having been requested to contact counsel, he would have done so. He was unable to recall the details of the conversation and had no notes of it.

[53] Dr. Anton was then asked if he had signed a Form 53, Acknowledgment of Expert’s Duty certifying that his opinion was fair, objective and non-partisan. Dr. Anton said that he had signed the form and was aware of his duty. He was then asked:

Q. All right. Now, Doctor, and this is no criticism of you, because you were asked to do it, and you did it, but do you think you’re being fair, objective and nonpartisan when you’re discussing your opinion with the lawyer who hires you before you write your report? Do you think that’s fair and nonpartisan and objective?

A. I believe it is, if, if the discussion doesn’t affect my report.

Q. But you don’t know what the discussion was, do you?

A. No. But I can assure you, I’ve had many discussions with lawyers, and I do not let those discussions affect my opinion. Further, in British Columbia, it’s an absolute requirement that (an) expert’s first duty is to the court. And I must certify that. And I do that regularly. And I take that very seriously.

Q. Well ... .

A. And my duty here, I believe, is also to serve the court. And so I am attempting to do that with my reports and my testimony.

Q. Well, but, Doctor, here in Ontario, we don’t have lawyers writing to doctors and saying I want to talk to you about your opinion before you commit it to writing.

A. Mm-hmm. Well, in British Columbia, that is not an unusual practice. It’s not standard, but it’s not rare. And, in fact, it seems to be occurring more often.

[54] The same type of questioning was repeated in relation to a second report that Dr. Anton had prepared. Appellant’s counsel objected but the trial judge deferred the issue. Meanwhile, respondents’ counsel returned to the theory in his closing address:

Mr. Gibson was insistent upon speaking to Dr. Anton before he authored any report. Leaving aside the issue of whether or not that’s appropriate, you should be asking yourself what was Mr. Gibson so afraid of? What did he not want Dr. Anton to say before he came to this court, before he authored a report? All I can assume is he was afraid the evidence was not going to be helpful.

[55] Ultimately, this issue was dealt with as part of counsel’s submissions on the jury charge. Counsel for the appellant at the time (not Mr. Hutchison) took the position that his discussions with Dr. Anton were perfectly proper, that he had done nothing wrong and the trial judge should instruct the jury accordingly. The respondents argued, on the basis of the trial decision in Moore,that such discussions were entirely improper. Respondents’ counsel said that he was within the law to argue that position to the jury to the point of suggesting that Mr. Gibson and Dr. Anton “had something to hide”. There of course was simply no evidence whatsoever to support the respondents’ position – the only evidence on point was that of Dr. Anton and he flatly denied it.

[56] The trial judge was in a difficult spot in terms of how to charge the jury and attempted to find a middle ground with counsel. She asked them to try to reach an agreement about what she should say to the jury in light of their disagreement on this point. Counsel agreed. The trial judge’s charge on the issue was as follows in relation to Dr. Anton:

He does about 140 medical/legal cases a year. He has done 15 to 20 per year for the last 5 to 10 years at the request of Mr. Gibson’s firm.

He said Mr. Gibson’s request to contact him before the report, both the first and second, is not typical, but it happens often that lawyers request this. He has no notes of what he and Mr. Gibson discussed. He said any discussions would not affect his report. His first duty is to the court and he certifies that duty to the court.

He said in B.C. this is not usual and not rare. It is occurring more often. It is not standard, but not rare. He does not recall any issue raised that made him uncomfortable or made him feel coerced or persuaded or in any way that anything inappropriate had been said. The conversations are not referred to in his reports. Dr. Anton said the conversations did not affect his opinion or his duty to the court to be objective.

He did not change his medical opinions because of his conversations with Mr. Gibson. Mr. Gibson has never tried to get Dr. Anton to alter his opinion on any case. Dr. Anton has testified between 100 and 150 times in British Columbia. He always tries to act ethically and impartially.

On the matter of the discussions between Mr. Gibson and Dr. Anton before Dr. Anton authored his reports, they were engaging in the practice which is apparently done occasionally but not rarely, in the Province of British Columbia.

[57] It is clear from the record that the trial judge in this part of her charge used the language that counsel had agreed she should on this point. She confirmed the fact of their agreement during counsel’s submissions on the jury charge. She first asked counsel to “draft something that you agree to” in a manner that

makes it clear that we don’t want to enter into a debate about what the practice is in Ontario or how the practice differs in B.C. from Ontario, but that … [Dr. Anton] and Mr. Gibson were doing what appears to be not usual, but not rare in British Columbia. And it’s for them to decide whether that has any impact on the decision.

[58] Mr. Kirby said he was “content with words to that effect” and Mr. Gibson said, “[w]ith respect to the charge, yes, that’s fine.” The trial judge then asked counsel to work together and agree on the wording over the lunch hour. Near the end of the same day, she confirmed counsel’s agreement:

THE COURT: So this clause that you came up with, with respect to Dr. Anton that I understand you both agreed to, was the suggestion that I would put that after Dr. Anton’s testimony, insert it there?

MR. KIRBY: I would think that would make the most sense.

[59] Appellant’s trial counsel made no further objections on this issue, nor did they object after the charge was given to the jury.

The Parties’ Positions on Appeal

[60] Notwithstanding counsel’s agreement on the jury charge, the appellant submits that the trial judge’s failure to correct respondents’ counsel’s improper approach to this issue amounted to a legal error. She says that the trial judge erred by failing to instruct the jury that they could not rely upon the discussions between Mr. Gibson and Dr. Anton as a basis for rejecting Dr. Anton’s evidence.

[61] The appellant further submits that this error may have led to the jury’s inconsistent verdict. Mr. Kirby, in his closing address, put to the jury the direct link between Dr. Anton’s evidence and the appellant’s claim for future income loss. Dr. Anton’s evidence was crucial to demonstrating the appellant’s ongoing impairment and was in direct opposition to that of Dr. Boulias. The importance of a fair adjudication of their competing views cannot be overstated.

[62] The respondents seek to distinguish this court’s decision in Moore and confine it to its own facts. They say that Moore indicates it is acceptable for counsel to review an expert’s draft report before delivering the final report. By contrast, it is improper for counsel to communicate with an expert before any report was prepared or the plaintiff was assessed. Cross-examination on such communications is permitted in the limited factual circumstances of this case. In any event, counsel’s failure to object to the charge is fatal to the appellant’s argument on appeal that it was flawed.

Analysis

[63] In my view, the respondents’ submission that the circumstances of this case are distinguishable from those in Moore is without merit. As this court explained at para. 55 of Moore:

While some judges have expressed concern that the impartiality of expert evidence may be tainted by discussions with counsel … , banning undocumented discussions between counsel and expert witnesses or mandating disclosures of all written communications is unsupported by and contrary to existing authority: see Maras v. Seemore Entertainment Ltd., 2014 BCSC 1109, [2014] B.C.W.L.D. 4470 at para. 90 (“[c]ounsel have a role in assisting experts to provide a report that satisfies the criteria of admissibility”); Surrey Credit Union v. Willson (1990), 1990 CanLII 1983 (BC SC), 45 B.C.L.R. (2d) 310 (S.C.) at para. 25 (“[t]here can be no criticism of counsel assisting an expert witness in the preparation of giving evidence”). In Medimmune Ltd. v. Novartis Pharmaceuticals UK Ltd. v. Anor, [2011] EWHC 1669 (Pat.) the court pointed out, at para. 110, that in some highly technical areas such as patent law, expert witnesses “require a high level of instruction by the lawyers” which may necessitate “a high degree of consultation” involving “an iterative process through a number of drafts.”

[64] The court then went on to review what I might call the built-in safeguards of the adversarial system that protect against the mischief alluded to by the respondents in their cross-examination of Dr. Anton. I say alluded to because counsel never did address the issue head-on and ask the Doctor directly whether his opinion had been in any way influenced by his discussions with appellant’s counsel.

[65] First, the court noted that the ethical and professional standards that govern the legal profession forbid counsel from engaging in practices likely to interfere with the independence and objectivity of expert witnesses. Second, the ethical standards of other professional bodies place an obligation on their own members to be independent and impartial when giving expert evidence. Third, at para. 61, the court noted that:

the adversarial process, particularly through cross-examination, provides an effective tool to deal with cases where there is an air of reality to the suggestion that counsel improperly influenced an expert witness. Judges have not shied away from rejecting or limiting the weight to be given to the evidence of an expert witness where there is evidence of a lack of independence or impartiality.

[66] And in the present case there was no evidence of any lack of independence or lack of objectivity on the part of Dr. Anton. Mr. Kirby was on a fishing expedition asking questions that on the facts of the case he had no business asking. They were improper and should not have been permitted.

[67] That said, Dr. Anton handled himself well in the circumstances. When counsel asked him a similar series of questions in relation to a second report that he prepared on behalf of the appellant, and whether he thought it “fair, and objective, and nonpartisan to have these secret discussions with plaintiff’s counsel before you write a report?” he responded:

Firstly, the discussions I would characterize as privileged, not secret. Second, it’s not usual, but it’s not a rare practice. Third, those discussions do not affect my opinion. And I stand by the opinions in my report and my ability to try to be objective and serve the court in the way that I am required to do.

[68] In Moore, at para. 78, this court said:

Absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a party should not be allowed to demand production of draft reports or notes of interactions between counsel and an expert witness. Evidence of an hour and a half conference call plainly does not meet the threshold of constituting a factual foundation for an allegation of improper influence.

[69] Similarly here, a mere request from counsel to speak to the expert witness either before the expert sees the client or writes a report does not alone meet the threshold for an allegation of improper influence – which was exactly the impression counsel for the respondents was attempting to make with this jury.

[70] On the facts of this case and in light of this court’s decision in Moore, it is clear that the questions Mr. Kirby asked should not have been permitted.

[71] But that is not dispositive of this ground of appeal. The appellant’s submission is that the trial judge erred by failing to instruct the jury that any pretrial communications between appellant’s counsel and Dr. Anton was no basis for them to reject his evidence.

[72] In light of counsels’ agreement on this point, it is difficult to fault the trial judge for doing exactly what counsel had agreed she should do. It is not surprising that in light of their agreement, there was no objection to the charge on this point. And as pointed out by Simmons J.A. in Westerhof v. Gee Estate, 2015 ONCA 206, at para. 177, leave to appeal to S.C.C. refused, 2015 CarswellOnt 16499:

In the context of a civil jury trial, failure to object to the charge, particularly in a case involving non-direction, will often be fatal to any subsequent claim that the charge was flawed: Marshall v. Watson Wyatt & Co. (2002), 2002 CanLII 13354 (ON CA), 57 O.R. (3d) 813 (C.A.), at para.15.

[73] Appellate courts are justifiably unsympathetic to objections to a charge made for the first time on appeal. As Laskin J.A. noted in Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, at para. 47, “[t]hat must be especially so when counsel have been given the opportunity to consider and comment on the charge in advance.” That is precisely what happened here.

[74] In my view, it is not appropriate for counsel to take a position below, make an agreement with the court and then to resile from that position in this court.

[75] Counsel for the appellant, rather than agree, ought to have maintained the objection to Mr. Kirby’s questioning and requested, as he did originally, that the jury be charged to the effect that there was nothing whatsoever improper about the discussions he had had with Dr. Anton. He did not maintain that objection and instead agreed to the language that the trial judge ultimately used. I would dismiss this ground of appeal on this basis.

[76] However, with that said, I am not persuaded that the jury rejected Dr. Anton’s evidence in its entirety. Both Dr. Anton and Dr. Panagiotopoulos opined to the effect that while the appellant’s symptomology had improved since the accident her condition was ongoing. In their opinion, her prognosis for further improvement was poor. This jury clearly accepted that the appellant had an ongoing disability that prevented her from performing at the level of a full time general practice dentist to the time of trial. Dr. Boulias’s evidence for the respondents was to the effect that in August 2011 there was nothing preventing the appellant from pursuing her pre-accident career plans. The jury’s past income loss award clearly indicates that they rejected that evidence.

[77] Simply because the jury did not accept all of Dr. Anton’s evidence is not a sufficient basis to submit that it “rejected his evidence”. And even if it had, there was still the evidence of Dr. Panagiotopoulos, the orthopedic surgeon and the doctor who had most recently examined the appellant before trial, whose opinion was to the same effect as Dr. Anton’s.

[78] This jury simply did not accept that the appellant’s level of disability, going forward, would preclude her from engaging in a full time clinical practice or other employment that would earn an equivalent income.

[79] Some of the evidence this jury had before it was:

• The appellant was a 35-year-old woman who had earned almost $235,000.00 in the year before the trial;

• She had suffered only soft tissue injuries in a motor vehicle accident – soft tissue injuries which generally get better over time;

• She had made significant improvements in her injuries over the six years since the accident;

• Some of the experts said she would continue to make further improvements with continued treatment and exercise;

• One doctor testified that there was no contraindication preventing her from pursuing her pre-accident career plans in private practice or pediatric dentistry; and

• Not unimportantly, one study discussed in an expert’s report had shown that 65 per cent of dentists suffered neck and shoulder complaints and 59 per cent low back complaints regardless of whether they had been involved in a motor vehicle accident.

[80] On this evidence, in my view, this jury was entitled to find that after allowing for some time to find a new job there was nothing to preclude the appellant from gainful employment equivalent to what she would have had absent the accident.

[81] For these reasons, I would dismiss the appeal.

THE CROSS-APPEAL

Issue #1 – The Respondents’ Offer to Settle

[82] The respondents seek leave to appeal the trial judge’s costs award. They argue that the trial judge erred in principle when she awarded the appellant her partial indemnity costs of the entire proceeding. Instead, she should have given effect to rule 49.10 and awarded the appellant her partial indemnity costs to the date of the respondents’ offer to settle and awarded the respondents their partial indemnity costs thereafter.

[83] On March 21, 2014, the respondents served an offer to settle on the appellant. The terms of that offer are set out at para. 7 of the trial judge’s costs endorsement, dated March 2, 2015:

1. The Defendants withdraw all previous offers to settle;

2. Payment to the Plaintiff of the sum of One Million Dollars ($1,000,000.00) for all damages and pre-judgment interest;

3. Payment to the plaintiff of her costs on a partial indemnity basis, to the date of this offer, to be agreed upon or assessed; and

4. This offer to settle shall remain open for acceptance until one minute after the commencement of the trial herein and shall, thereafter, be withdrawn.

[84] The appellant recovered a judgment for $490,079 inclusive of prejudgment interest. The judgment was clearly less favourable than the respondents’ March 21, 2014 offer to settle.

[85] The trial here commenced on March 31, 2014 and evidence began on April 2, 2014. On April 3, 2014 the respondents moved for a mistrial and on April 4, 2014 their motion succeeded and a mistrial was declared. The second jury trial began on April 14, 2014.

[86] As the trial judge put it, the issue before her was:

whether the offer expired one minute after the commencement of the initial trial and therefore was not open for acceptance by the Plaintiff after that point in time and specifically had expired before the commencement of the second trial.

[87] The trial judge concluded that the respondents’ offer had by its terms expired one minute after the evidence began in the trial that was ultimately declared a mistrial and that it remained expired thereafter. As she noted at para. 13 of her reasons, after discussing the terms of the offer and rule 49.04(3), which deems an offer withdrawn in certain circumstances:

The March 21, 2014 offer to settle was not therefore open for acceptance between the time the mistrial was granted and the second commencement of the trial on April 14, 2014.

[88] The respondents’ essential argument is that the appellant should not be able to avoid the costs consequences of an offer to settle through her own counsel’s misconduct, which caused the mistrial.

[89] I reject this submission. The first point is that there was no misconduct on the part of appellant’s counsel – at its highest it was a matter of inadvertence. One of the lawyers representing the appellant had agreed with respondents’ counsel that the late timing of the respondents’ admission of liability would not be mentioned before the jury. Obviously, as it turned out, the fact of that agreement had not been shared with the appellant nor with her co-counsel. In response to a question that her co-counsel asked during examination in chief, the appellant remarked that up until a week before trial the respondents had blamed her for causing the accident. It was this response that resulted in the mistrial. I do not accept the submission that the appellant gets any “advantage” as Mr. Kirby phrases it from the fact of the mistrial.

[90] It was the respondents’ choice of language that was used in the offer to settle. The trial judge in considering this issue followed the weight of judicial authority on this point. She relied upon and followed Denison v. M. Loeb Ltd. (1993), 1993 CanLII 5484 (ON SC), 16 O.R. (3d) 130 (Gen. Div.) at p. 133:

In this case, the plaintiff presented evidence through witnesses, in support of his case during three days prior to the trial being declared a mistrial. The fact that the trial was declared a mistrial does not, in my opinion, mean that the time in which the offer was available for acceptance and which expired when the hearing began, reopened or was extended. It seems only fair and just to me to hold that an offer left open until the beginning of the presentation of the case, became unavailable for acceptance once the case began to be presented, and remained unavailable thereafter.

Accordingly, the offer made by the Plaintiff in this case was not available for acceptance once the trial began in February of this year and the fact that what was a trial when it started turned out to be no trial at all, does not revitalize or extend the offer because the circumstances intended for the duration of its availability had passed.

[91] As the trial judge noted Denison was followed in Keays v. Honda Canada Inc. (2006), 2006 CanLII 3968 (ON SC), 48 C.C.E.L. (3d) 86 (Ont. S.C.), and although Keays went all the way to the Supreme Court of Canada it did so on other issues: see 2008 SCC 39, reversing in part (2006), 2006 CanLII 33191 (ON CA), 82 O.R. (3d) 161 (C.A.). This point was not the subject of those further appeals.

[92] In my view, the trial judge committed no error when she concluded that rule 49.10(2) was of no application in the circumstances. The respondents’ offer had expired before the second trial began.

[93] Before this court the respondents also disputed the quantum of costs awarded. They argued that the trial judge failed to take a “holistic” approach to the determination of costs as explained in this court’s decision in König v. Hobza, 2015 ONCA 885, at para. 35. A fair reading of the costs endorsement does not bear this argument out. The trial judge considered the offers that had been made by both sides. She noted that the respondents’ offers were much closer than the appellant’s to the actual amounts found by the jury. She considered the nature of the case, the complexity of the issues and the time factors required.

[94] The appellant had sought partial indemnity costs in the amount of $353,936.04 inclusive of HST for fees only. The trial judge first reduced this amount by some $53,000 to reflect a partial indemnity rate of $200 per hour for one of the appellant’s co-counsel rather than the $330 that had been claimed. Apparently, the appellant conceded that this reduction was appropriate.

[95] The trial judge considered that the appellant had recovered just under $500,000 – an amount significantly less than she had claimed. She noted that it was the appellant’s future income loss award that fell significantly short of her claim. She fixed the appellant’s partial indemnity costs for this seventeen-day trial at $275,000 inclusive of fees and applicable taxes. In my view, this figure was appropriate in all the circumstances of this case. While other cases are helpful for the principles they establish, it is necessary in the application of those principles to consider each case on its own unique set of facts.

[96] The facts here are unlike those in Elbakhiet v. Palmer, 2014 ONCA 544, leave to appeal refused, [2014] S.C.C.A. No. 427, where the jury had awarded damages of $145,000, yet the trial judge fixed the plaintiffs’ partial indemnity costs at almost $580,000. In Elbakhiet the trial judge erred in principle by failing to consider rule 49.13 and awarding costs wholly disproportionate to the amounts recovered in the proceeding. The trial judge here considered rule 49.13. She considered “the amount claimed and the amount recovered in the proceeding" as rule 57.01(1)(a) requires. In my view, the award in this case is fair and reasonable and is not wholly disproportionate to the amount recovered.

[97] For these reasons, the respondents have failed to demonstrate that there are strong grounds upon which this court could find that the trial judge erred in exercising her discretion: see Brad-Jay Investments Ltd. v. Szijjarto (2006), 2006 CanLII 42636 (ON CA), 218 O.A.C. 315, at para. 21, leave to appeal refused, [2007] S.C.C.A. No. 92. Accordingly, I would decline to grant the respondents’ request for leave to appeal the costs award.

Issue #2 – The Assignment of Collateral and Statutory Accident Benefits

[98] The respondents submit that the trial judge erred in limiting their entitlement to an assignment of collateral and statutory accident benefits.

[99] In an endorsement dated March 2, 2015, the trial judge held that the appellant shall hold in trust and remit to the Manitoba Insurance Commission (the respondents’ insurer) for a period of one year only following the date of judgment, the following:

• Income benefits received from Great West Life up to a maximum of $112,496 (the amount of the future income loss award); and

• Statutory accident benefits for health care expenses, expressly limited to those treatment modalities mentioned specifically in the trial judge’s charge to the jury, up to a maximum of $27,450.

[100] By way of background, despite the respondents’ arguments to the contrary during pre-charge submissions, the trial judge permitted the question of an award for future health care costs to go to the jury.

[101] While there might have been better evidence called in relation to this claim, the trial judge reasoned that Exhibit 4, which was an exhaustive list of all the out‑of-pocket expenses the appellant claimed as the result of the accident to the date of trial, was some indication of what might be incurred in future. She also noted that the jury had evidence from the appellant herself as to her current treatments, including massage, kinesiology sessions and Botox injections. In terms of the necessity of the treatments, the jury also had the evidence of various expert witnesses. On this basis the trial judge permitted the question to go to the jury and the jury awarded $27,450 for future health care costs.

[102] Section 267.8(9) of the Insurance Act, R.S.O. 1990, c. I.8, provides that a plaintiff who recovers damages for loss of income or for expenses that will be incurred for health care shall hold in trust for the defendants “[a]ll payments in respect of the incident that the plaintiff receives after the trial of the action” for loss of income under the laws of any jurisdiction or under any income continuation benefit plan and for statutory accident benefits in respect of expenses for health care.

[103] Exhibit 4 was an exhaustive list and contained numerous health care costs claims. Yet the trial judge limited the trust and assignment of statutory accident benefits to only four specific types of services: kinesiology sessions, massage, medications (including Botox injections), and bite plate replacements. The jury awarded a lump sum only and did not break down its award in any way. The trial judge reasoned that as these four items were the only claims she had referenced in her charge it was logical that these would be the costs the jury considered in making their award.

[104] A defendant’s right to an assignment of future collateral benefits received by a plaintiff is available only if they cover the same expenses for which the defendant has been ordered to pay damages to the plaintiff. In arriving at her decision regarding the trust and assignment, the trial judge relied on the trial decision in Gilbert v. South, 2014 ONSC 3485, which this court recently affirmed: 2015 ONCA 712. In this court Laskin J.A. held, at para. 44, that a defendant can only obtain an assignment of a plaintiff’s future benefits if both of the following criteria are met:

1. The jury’s award mirrors the collateral benefit sought to be assigned; and

2. There is no uncertainty about the plaintiff’s entitlement to these collateral benefits.

[105] In Gilbert, uncertainty about the extent of overlap between the plaintiff’s entitlement to accident benefits and the jury’s global award for future care costs meant that the defendant had not met its onus to establish entitlement to an assignment. This is the same reason that the trial judge here declined to extend the assignment and trust to future health care costs not enumerated in her charge to the jury. To do otherwise would be to engage in speculation.

[106] In this court the respondents did not press their similar argument in relation to the loss of future earnings claim. The dispute centered on whether the assignment/trust should be temporally limited or not. The respondents urged that it not be limited in terms of time but only by the amount awarded.

[107] The trial judge rejected the respondents’ position at paras. 34 and 35 of her reasons as follows:

The Defendants argue that the Plaintiff’s position is too speculative in regards to what the jury intended and that the assignments of Great West Life benefits should otherwise be in place without temporal limit until it reaches the amount of $112,496.

In my view, in balancing the principles of double recovery and full indemnity it would not be just or equitable to give the Defendants an assignment for the next nine or ten years. I know the numbers and scenarios the jury had to work with. I heard all the evidence. There was no reasonable scenario under which the jury could have found the Plaintiff suffered a small monthly income loss over nine to ten years. In my view this would be more speculative than the Defendant’s position and not consistent with the numbers or evidence at trial. I therefore limit the assignment and trust to a period of twelve months past the judgment.

[108] There is no error demonstrated here. In my view, this court’s decision in Gilbert is largely dispositive of this ground of the cross-appeal and accordingly I would dismiss it.

Issue #3 – The Prejudgment Interest Rate

[109] Finally, the respondents argue that the prejudgment interest rate on the awards for past income loss and special damages should be at the rate prescribed by ss. 127 and 128 of the Courts of Justice Act and not at the average rate fixed by the trial judge. They say that no special circumstances existed that permitted the trial judge to deviate from the prescribed rate.

[110] This was a discretionary order. As Doherty J.A. noted in Novakovic v. Kapusniak, 2008 ONCA 381 at para. 44:

Trial judges sometimes average prejudgment interest rates over the time period between the commencement of the action and the obtaining of judgment. This is particularly appropriate where the prejudgment interest rates fluctuate widely.

[111] Here the trial judge set out in her reasons why she departed from s. 127. She reasoned that because the appellant’s past income losses and special damages were incurred over several years and not at a single point in 2009 (when her statement of claim was issued), it would work an unfairness to apply the record-low interest rate from the third quarter of 2009 to the entire damage award. In her view this amounted to “special circumstances” within the meaning of this court’s decision in Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460, for exercising her discretion to deviate from the prescribed rate.

[112] I see no error in her discretionary order, and I would dismiss this ground of appeal.

DISPOSITION

[113] For these reasons, the appeal and cross-appeal are dismissed. In these circumstances where success has been divided the appropriate order is no costs and I would so order.

Released: April 26, 2016 “KMvR”

“J. MacFarland J.A.”

“I agree G.G. Gillese J.A.”

“I agree K. M. van Rensburg J.A.”

[^1]: The jury was asked to assess the appellant’s past loss of income on a 100% gross basis. The net amount awarded in the judgment for past loss of income was $164,270.98.

[^2]: The respondents did not seek leave to appeal the costs order in their notice of cross-appeal but did so at the hearing of the appeal.

[^3]: Dr. Panagiotopoulos, Dr. Donaldson, and Dr. Hamm were retained at the request of the appellant’s disability benefits provider, which was not a party to this litigation.