Court of Appeal for Ontario

Date: October 5, 2018 Docket: C62419

Judges: Hourigan, Miller and Trotter JJ.A.

Between

Deyana Mamado Plaintiff (Respondent)

and

Franco Basso, Allen Fridson and New Horizons Car & Truck Rentals Ltd. Defendants (Appellants)

Counsel

For the Appellants: Stephen G. Ross and Erin Crochetière

For the Respondent: Jordan V. Katz and John J. Adair

Heard: October 3, 2018

On appeal from: The judgment of Justice Deena F. Baltman of the Superior Court of Justice, dated February 23, 2017.

Reasons for Decision

[1] The respondent was injured in a car accident. She sued the appellants. Just before the trial, the appellants admitted liability. The trial proceeded as an assessment of damages before a jury. The appellants alleged that the respondent was malingering. They were ordered to pay substantial damages.

[2] The appellants contend that the trial judge failed to properly address the transgressions of the respondent's counsel at trial (not Mr. Adair or Mr. Katz). They complain that the trial judge unfairly summarized the evidence in her instructions to the jury, resulting in an unbalanced and unfair charge. Finally, the appellants allege that the trial judge displayed a reasonable apprehension of bias.

[3] There is no merit in any of these submissions.

[4] Many of the complaints on this appeal, which the appellants portray as grave wrongs, were not objected to at the time. Failure to object will not sanitize all imperfections in a trial; however, it is often a good indicator of harmless events.

[5] By way of example, the appellants claim that trial fairness was sacrificed when the appellants' psychiatrist, Dr. Reznek, was cross-examined on his knowledge of the extent to which the respondent was under surveillance. Dr. Reznek said he was aware of "a very short amount of video surveillance." Counsel asked him whether he knew that surveillance occurred on 26 days over a 4-year period, which he did not know. There was no objection to these questions when they were asked. When the issue was discussed during the pre-charge conference, objection was taken to its relevance, but not its accuracy. We see little, if any, prejudice in this evidence, the accuracy of which is not disputed.

[6] Appellants' counsel objected to the opposing counsel's comments in his opening address about the late admission of liability. A mistrial was requested. Instead, the trial judge issued a correcting instruction. A similar comment was made by respondent's counsel in his closing address. No objection was taken. Still, the trial judge instructed the jury that the timing of the admission was irrelevant. The trial judge's responses were appropriate.

[7] The appellants complain about how the trial judge framed the potential range of general damages. She reminded the jury that the respondent's counsel said that the award could be "as high as $197,000 but advised that he is not seeking that figure", and that the appellants "suggested a figure in the range of $20,000." The appellants contend that this was unfair because it locked the jury into awarding a minimum amount of $20,000. Trial counsel objected to this language in the charge. However, during pre-charge discussions, she had advised the trial judge that she was "not going to go in at zero" and would be suggesting something "around 20, 25 (thousand)" to the jury. And she did. We fail to see the unfairness in the circumstances.

[8] Some of the purported inaccuracies in the jury instructions are taken out of context. For example, the appellants argue that the trial judge told the jury that the respondent could not work or return to normal activities because of the accident and could not mitigate because she could not afford treatment, as if these were established facts the jury was required to accept. These were instances where the trial judge was summarizing the respondent's evidence. Again, no objection was taken at the time. Moreover, the trial judge instructed the jury that "it is up to you to weigh all of the evidence and you decide what the facts are." Later, she said, "As I have said, you are the sole judges of the facts, not I."

[9] The appellants argue that the trial judge showed a negative attitude towards the defence experts. We disagree. Any comments in the trial judge's ruling on admissibility (Mamado v. Fridson, 2016 ONSC 4080) would not have been before the jury. In any event, we read nothing inappropriate in this ruling. Moreover, the trial judge's comments in her instructions were accurate and balanced. She advised the jury of the proportion of medico-legal work (in terms of time spent or income earned) in the practices of Dr. Chen (respondent's expert), Dr. Soric (appellants' expert) and Dr. Reznek (appellants' expert), and the proportion of that work performed for plaintiffs or defendants.

[10] Over all, the trial judge's conduct of the trial was fair and balanced.

[11] Lastly, we turn to reasonable apprehension of bias. It is unclear why this ground of appeal was advanced. It adds nothing to the other complaints made by the appellants. It is always a serious matter to allege bias or reasonable apprehension of bias on the part of a judge. Such a claim amounts to an attack on the integrity of the judge. The appellants' complaints do not come remotely close to satisfying the very high standard required to displace the strong presumption of impartiality of Canadian judges. We echo the comments from Kelly v. Palazzo, 2008 ONCA 82, 89 O.R. (3d) 111, in which Doherty J.A. said, at p. 117, that baseless allegations of bias or of a reasonable apprehension of bias "do a disservice to the administration of justice."

[12] The appeal is dismissed. On the agreement of counsel, the respondent is entitled to costs in the amount of $15,000 (inclusive of disbursements and HST).

C.W. Hourigan J.A.

B.W. Miller J.A.

Gary T. Trotter J.A.