Court of Appeal for Ontario

Date: May 17, 2019 Docket: C62352

Panel: Hoy A.C.J.O., Watt and Zarnett JJ.A.

Between

Ramesh Gopie, Seeta Jagmohan, Daniel Gopie, Devica Gopie and Shalinie Gopie, a minor by her Litigation Guardian, Seeta Jagmohan

Plaintiffs (Appellants)

and

Ravi Ramcharran, Roland Beadle, Dave Garnett, the City of Toronto, Sophia Khan o/a S.C.A.R.P. Auto Sales and Economical Mutual Insurance Company

Defendants (Respondents)

Counsel:

• Todd J. McCarthy, for the appellants
• Jack Fitch, for the respondent, Economical Mutual Insurance Company

Heard: May 7, 2019

On appeal from: The judgment of Justice Nancy J. Spies of the Superior Court of Justice, sitting with a jury, dated October 27, 2016.

Reasons for Decision

Background

[1] The appellant, Ramesh Gopie, was injured in a motor vehicle accident on November 1, 2005. The driver of the other vehicle was uninsured, so Mr. Gopie's own insurer, the respondent Economical Mutual Insurance Company, defended the action as an uninsured motorist carrier. Liability was not in dispute. The appellants – Mr. Gopie and his family – sought in excess of $10 million in damages, arguing that Mr. Gopie suffered ongoing symptoms from the mild traumatic brain injury he sustained in the accident.

[2] Following an eight-week trial, the jury returned a verdict of about $186,000, including pre-judgment interest – an amount significantly less than the respondent's pre-trial settlement offer of $500,000, plus costs. Once the damages, pre-judgment interest, and the costs awarded to the appellants were set off against the costs the trial judge awarded to the respondent, the appellants recovered nothing and owed the defendants a further $22,406.37 in costs.

Issues on Appeal

[3] The appellants argue that there are two reasons for the jury's modest assessment of Mr. Gopie's damages and that they require a new trial. First, the jury was allowed to effectively judge the character of Mr. Gopie and whether he was a person who was generally untruthful, and, therefore, could not properly assess whether the evidence about his ongoing symptoms following the accident should be accepted or rejected. They say this was the result of the trial judge improperly exercising her gatekeeping function in permitting Dr. Furlong, one of the respondent's two defence psychiatrists, to impugn Mr. Gopie's character and the trial judge having improperly told the jury that they could use the evidence of Mr. Gopie's convictions arising out of events following the accident and other unlawful conduct for the purpose of assessing Mr. Gopie's credibility. The appellants argue that, together, these errors resulted in a "character assassination".

[4] Second, the jury was led astray on the proper test for causation and the standard of proof applicable to claims for damages in the future by the trial judge's charge on what she described as "preliminary questions" that the jury may wish to consider before reviewing the Questions for the Jury.

[5] We reject these arguments.

Analysis

Character Evidence and Credibility

[6] The appellants had called evidence of both Mr. Gopie's good character traits and bad behaviour, including convictions and other unlawful conduct. Their position was that he was of good character before the accident, and his bad behaviour following the accident was the result of ongoing emotional disability caused by the mild traumatic brain injury he sustained in the accident. Having introduced evidence of Mr. Gopie's character, the respondent was entitled to challenge it.

[7] The respondent put the evidence of Mr. Gopie's unlawful conduct to Dr. Furlong, as hypotheticals, and asked him whether such conduct, if it had occurred, would affect his psychiatric assessment of Mr. Gopie. In responding to whether it would affect his assessment if Mr. Gopie's licence were suspended on medical grounds and Mr. Gopie continued to drive, Dr. Furlong offered a number of possible interpretations including that Mr. Gopie had told stories to the doctors on whose advice his licence was suspended that were not true. Over Mr. Gopie's trial counsel's objection, the trial judge permitted respondent's counsel to continue and confirm with Dr. Furlong whether such conduct would affect his psychiatric assessment of Mr. Gopie.

[8] We agree with the appellants that Dr. Furlong's response including that Mr. Gopie might have told stories to the doctors that were not true was not proper expert evidence. In her summary of Dr. Furlong's evidence in her charge to the jury, the trial judge made no reference to this response. Referring to his response and telling the jury to disregard it may well have drawn more attention to it. Mr. Gopie's trial counsel made no objection to the manner in which the trial judge summarized Dr. Furlong's evidence. We are not persuaded that Dr. Furlong's response or the manner in which the trial judge charged the jury in relation to Dr. Furlong's evidence warrants a new trial.

[9] The trial judge charged the jury that they could use the evidence of Mr. Gopie's criminal record and other admitted unlawful conduct for two purposes: first, to assess how, if at all, the accident impacted on Mr. Gopie's judgment and, second, for the purpose of assessing the credibility and truthfulness of Mr. Gopie. The appellants argue that Mr. Gopie's unlawful conduct could only be used for the purpose of assessing his credibility to the extent that he denied those acts of misconduct at trial, and the trial judge erred in charging the jury otherwise. We reject this argument. The trial judge properly charged the jury that they could use the evidence of Mr. Gopie's criminal record and admitted unlawful conduct for the purpose of assessing the credibility and truthfulness of Mr. Gopie, in addition to using it to assess how, if at all, the accident impacted on Mr. Gopie's judgment. Moreover, the trial judge provided a draft of her charge to counsel for review and comment. Trial counsel for the appellants made no objection regarding this portion of the charge.

Causation and Standard of Proof

[10] Nor do we agree that the jury was led astray on the proper test for causation and the standard of proof applicable to claims for damages in the future by the trial judge's charge on what she described as "preliminary questions". The trial judge clearly and carefully charged the jury that for the defendants to be held liable in damages to the plaintiffs, it was necessary for the plaintiffs to prove that they would not have suffered the injuries claimed but for the accident. She then explained the standard of proof that was required. After describing the "balance of probabilities" standard, she went on to explain that a different standard of proof – whether there is a "real and substantial possibility" – applies to claims for damages in the future. After this, and before reviewing the Questions for the Jury, she set out some preliminary questions, around which she organized her review of the evidence, to assist the jury in their fact-finding process. In crafting those questions, she carefully used the "real and substantial possibility" standard when referring to the impacts on Mr. Gopie's future physical and mental health. The manner in which she formulated those preliminary questions would not have created any confusion about the standard of proof applicable to claims for damages in the future.

Additional Arguments Not Pursued

[11] In their factum, the appellants made three additional arguments, which they did not pursue in their oral submissions, namely that the trial judge:

(1) failed to properly exercise her gatekeeper function in permitting two defence psychiatrists to testify;

(2) erred in law in ruling that medical records admitted as business records under s. 35 of the Evidence Act, R.S.O. 1990, Ch. E.23, were not admissible as medical opinions, in the absence of attendance and testimony from the practitioner; and

(3) in her charge, failed to provide (i) a sufficiently strong direction to the jury that they should reject any comments or opinions the judge made regarding the evidence if they were not in accord with the jury's comments or opinions; and (ii) a balanced charge to the jury on the issue of the pre-trial surveillance of Mr. Gopie and the use to be made of it.

[12] We also reject these arguments.

Expert Evidence – Gatekeeping Function

[13] First, there is no basis to interfere with the trial judge's ruling permitting two psychiatrists to testify for the respondent. She considered and fulfilled her gatekeeper function and provided a careful and comprehensive written ruling. Among other things, she considered the quantum of damages claimed, that the alleged psychological issues were a significant aspect of the claim, and the balance in the number of experts called by each side. The trial judge concluded that "overall [the two psychiatrists'] perspectives were quite different, and their evidence would not be unduly repetitive and would be of assistance to the jury." Further, there was no prejudice to the appellants if the two psychiatrists were permitted to testify, whereas the respondent might be prejudiced if they were not both permitted to do so.

Medical Records and Expert Opinion

[14] Second, an opinion contained in a medical record may be admissible as a medical report if the report is signed by the practitioner and leave of the court is obtained: Evidence Act, s. 52(2). The trial judge correctly exercised her gatekeeper function with respect to the admission of medical opinions contained in the medical records and reasonably concluded that they were not admissible in the absence of attendance and testimony from the practitioner.

Jury Charge

[15] Third, the jury charge was comprehensive, fair, and well-balanced. The trial judge provided a clear and sufficient direction to the jury that they, and not the judge, were the fact-finders:

[T]he law permits me to comment or express opinions about issues of fact. If I do that, you do not have to reach the same conclusion. You, not I, decide what happened in this case.

As stated, the trial judge provided a draft of her charge to counsel for review and comment. Trial counsel made no objection with respect to the issues now raised, before or after delivery of the charge.

Costs Appeal

[16] Finally, the appellants also seek leave to appeal costs. They acknowledge that there must be some cost consequences when offers to settle are greater than the judgment in accordance with the jury's verdict, but argue that, in all the circumstances, the trial judge's approach was disproportionate and the consequences to Mr. Gopie of the trial judge's costs order are too harsh.

[17] There is no basis to interfere with the trial judge's costs order. She considered the appropriate factors in fixing costs and her order is not plainly wrong. Accordingly, leave to appeal the costs order is refused.

Disposition

[18] The respondent shall be entitled to its costs of the appeal, fixed in the agreed upon amount of $20,000, inclusive of HST and disbursements.

"Alexandra Hoy A.C.J.O."

"David Watt J.A."

"B. Zarnett J.A."